INVENTING TERRORISTS

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3 INVENTING TERRORISTS The Lawfare of Preemptive Prosecution A study by Project SALAM and National Coalition to Protect Civil Freedoms May 2014 Written by Stephen Downs, Esq. and Kathy Manley, Esq. Lynne Jackson, database designer Jeanne Finley, editor

4 2014 by Project SALAM and National Coalition to Protect Civil Freedoms. This work is licensed under the Creative Commons Attribution 4.0 International License. To view a copy of this license, visit This license includes the section of the Project SALAM database contained herein as Appendix A, but the license does not include the entire Project SALAM database (aka Database of Cases), which is presently restricted as to use. Citation format: Downs, Esq., Stephen, and Kathy Manley, Esq. Inventing Terrorists: The Lawfare of Preemptive Prosecution. Albany, NY: Project SALAM and National Coalition to Protect Civil Freedoms (NCPCF), May the authors at: study[at]projectsalam.org

5 About the Authors, Preparers, and Sponsors of This Study Stephen Downs, Esq. graduated from Amherst College (1964) and Cornell Law School (1969) after serving in the U.S. Peace Corps in India ( ). He was chief attorney of the New York State Commission on Judicial Conduct from , part of the defense team in U.S. v. Yassin Aref ( ), and a founder of Project SALAM (2008). He became executive director of the National Coalition to Protect Civil Freedoms in Kathy Manley, Esq. is a criminal defense attorney and one of the attorneys for Yassin Aref. She is legal director of the National Coalition to Protect Civil Freedoms, a founder of Project SALAM, and vice president of the Capital Region Chapter of the New York Civil Liberties Union. Lynne Jackson is a professional computer consultant who specializes in database design. She is a founder of Project SALAM and serves as its president. Jeanne Finley is a professional editor and writer and media director of Project SALAM. Project SALAM (Support And Legal Advocacy for Muslims), was founded and incorporated in 2008 after a conference at Albany (New York) Law School that focused on preemptive prosecution. The conference was convened by groups and other interested people who supported Yassin Aref, Dr. Rafil Dhafir, and Fahad Hashmi, and featured attorney Lynne Stewart as keynote speaker. Project SALAM s mission is to advocate for prisoners who have been preemptively prosecuted, assist their families, create and maintain a database to study the phenomenon of preemptive prosecution, and publish on the issue. National Coalition to Protect Civil Freedoms (NCPCF), was founded and incorporated in 2010 as a coalition of Muslim, civil rights, and peace groups to oppose profiling, preemptive prosecution, and prisoner abuse. Current member organizations include: American Muslim Alliance (AMA), Bill of Rights Defense Committee (BORDC), Center for Constitutional Rights (CCR), Creating Law Enforcement Accountability and Responsibility (CLEAR), Committee to Stop FBI Repression (CSFR), Defending Dissent Foundation (DDF), Desis Rising Up and Moving (DRUM), Friends of Human Rights (FHR), International Action Center (IAC), Islamic Circle of North America (ICNA), Muslim Civil Liberties Union (MCLU), Muslim Legal Fund of America (MLFA), National Lawyers Guild (NLG), National Liberty Fund (NLF), Peace Thru Justice Foundation (PTJF), Project SALAM (Support And Legal Advocacy for Muslims), United National Antiwar Coalition (UNAC), and Universal Justice Foundation (UJF). To see specific details on any of the preemptive prosecution cases mentioned in this study and its appendices, readers can access the Project SALAM database at and sign in as a guest account; search for each defendant by name.

6 TABLE OF CONTENTS Summary Definition of Preemptive Prosecution Methodology Preemptive Prosecution: General Considerations.. 7 Preemptive Prosecution: Specific Considerations.. 7 Elements of Preemptive Prosecution No Preemptive Prosecution Individuals Who Were Guilty but Were Not Terrorists Individuals Who Attacked Other Countries Individuals Who Were Security Threats Inside the U.S Individuals Not on the DOJ List Who Were Security Threats Statistical Analysis Discussion Background Tactical Patterns of Preemptive Prosecutions.. 19 Material support for terrorism charges.. 19 Constitutionally protected free speech. 19 Free association Charitable giving and management.. 21 Social hospitality Training camps Stings (entrapment) Conspiracy charges Use of pressure to obtain information or cooperation 28 Use of pre-trial solitary confinement and Special Administrative Measures (SAMs) Tactical Patterns of Elements of Preemptive Prosecutions Not Preemptive Prosecution: Real Security Threats. 31 Conclusions Recommendations Endnotes

7 Appendices A: Tactics Used in Prosecution Sorted by Preemptive Prosecution Used, Elements of Preemptive Prosecution Present, or No Preemptive Prosecution Used [based on U.S. Department of Justice list, National Security Division Statistics on Unsealed International Terrorism and Terrorism-Related Convictions 9/11/01 3/18/10 ] A-1 to A-29 B: Preemptive Prosecution Cases Mentioned in the Study B-1 to B-50 C: Bibliography C-1 to C-25

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9 Lawfare: the use of the law as a weapon of war. Law and Military Interventions: Preserving Humanitarian Values in 21 st -Century Conflicts by Brigadier General (S) Charles J. Dunlap, Jr., USAF. In Humanitarian Challenges for Military Intervention, Harvard University, John F. Kennedy School of Government, The Carr Center for Human Rights Policy, November 2001.

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11 SUMMARY This study, sponsored by two national organizations, Project SALAM (Support And Legal Advocacy for Muslims) and the National Coalition to Protect Civil Freedoms (NCPCF), focuses on post-9/11 claims by the U.S. government that it keeps the country safe from terrorism by arresting hundreds of so-called terrorists who were about to strike the U.S. until the FBI foiled their plots. In fact, this study shows that there have been remarkably few actual terrorism threats to this country in the last decade. The vast majority of arrests in the war on terror have consisted of the FBI foiling its own entrapment plots; or the government arresting people on material support for terrorism charges that effectively criminalize innocent conduct, such as charitable giving and management, free speech, free association, peace-making, and social hospitality; or inflation of minor or technical incidents into terrorism events, such as immigration application inaccuracies, old weapons charges, or inaccurate statements to governmental officials The study shows that the war on terror has been largely a charade designed to make the American public believe that a terrorist army is loose in the U.S., when the truth is that most of the people convicted of terrorismrelated crimes posed no danger to the U.S. and were entrapped by a preventive strategy known as preemptive prosecution. The theme of the study links preemptive prosecution to the metaphor of lawfare, the use of the law as a weapon of war, in this case the war on terror. Statistically, the study asks how many of the individuals who appear on the Department of Justice (DOJ) list of terrorism and terrorism-related convictions (Appendix A) represented real terrorism 1

12 threats, and how many were cases of preemptive prosecutions. The study then categorizes the cases of the individuals on the DOJ list as one of three types of cases: preemptive prosecutions, cases that contained elements of preemptive prosecution, or cases that were not preemptive prosecutions/represented real terrorism threats. The statistical analysis shows that 72.4% of convictions on the DOJ list represent cases of preemptive prosecution that were based on suspicion of the defendant s perceived ideology and not on his/her criminal activity. Another 21.8% of convictions on the DOJ list represent people who began on their own to engage in minor, non-terrorist criminal activity but whose cases were manipulated and inflated by the government to appear as though they were terrorists ; these cases are referred to in the study as elements of preemptive prosecution or elements. Overall, 94.2% of all the terrorism-related convictions on the DOJ list have been either preemptive prosecution cases or cases that involved elements of preemptive prosecution. The study defines preemptive prosecution, gives background on the origin of the concept, discusses the tactical patterns that characterize its use by the government, and provides a methodology for determining the categorization of a case. The study then shows, for cases on the DOJ list, the percentages for each categorization of a case, as well as percentages for the tactical patterns used in each categorization. The study concludes that the government has used preemptive prosecution to exaggerate the threat of Muslim extremism to the security of the country, and presents some hypotheses as to why the government has done this, without taking a position on which possibilities may be correct. The study also makes recommendations to change the present unfair terrorism laws. 2

13 The following appendices are included: Appendix A is the DOJ list of terrorism/terrorism-related convictions with each individual s case designated as preemptive prosecution, elements of preemptive prosecution, or no preemptive prosecution used/real security threat. Appendix B contains descriptions of all preemptively prosecuted individuals and cases referenced in this study. Appendix C is a bibliography of sources. DEFINITION OF PREEMPTIVE PROSECUTION Preemptive prosecution (also called preventive, predatory, proactive, pretextual, or manufactured prosecution) is a law enforcement strategy, adopted after 9/11, to target and prosecute individuals or organizations whose beliefs, ideology, or religious affiliations raise security concerns for the government. 1 The actual criminal charges are pretexts, manufactured by the government to incarcerate the targets for their beliefs. These pretexts include: Using material support for terrorism laws to criminalize activities that are not otherwise considered criminal, such as free speech, free association, charity, peace-making and social hospitality. Using conspiracy laws to treat friendships and organizations as criminal conspiracies, and their members as guilty by association, even when most members of the group have not been involved in criminal activity and may not even be aware of it. Using agents provocateur to actively entrap targets in criminal plots manufactured and controlled by the government. Using minor technical crimes, which otherwise would not have been prosecuted or even discovered, in order to incarcerate individuals for their ideology (for example, making a minor error on 3

14 an immigration form, which is technically a crime; lying to government officials about minor matters; gun possession based on a prior felony many years earlier; minor tax and business finance matters). Journalist Chris Hedges has written that the concept of pre-emptive prosecution mocks domestic law as egregiously as pre-emptive war mocks the foundations of international law. 2 Preemptive prosecution is similar to earlier methods of political repression in the U.S. whereby ideology, beliefs, and thoughts were targeted for prosecution: the Palmer Raids of the 1920s, the Japanese internments during World War II, the Communist witch hunts of the 1950s, and COINTELPRO during the 1960s and 1970s, which targeted progressives and particularly the Black Liberation movement for infiltration, disruption, frame-ups, and even assassination, i.e., Black Panthers Fred Hampton and Mark Clark. The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (known as the Church Committee because it was chaired by Senator Frank Church) issued a report in 1976 on the COINTELPRO program that stated in part: Many of the techniques used would be intolerable in a democratic society even if all of the targets had been involved in violent activity, but COINTELPRO went far beyond that the Bureau conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association, on the theory that preventing the growth of dangerous groups and the propagation of dangerous ideas would protect the national security and deter violence nonviolent organizations and individuals were targeted because the Bureau believed they represented a potential for violence. 3 Targeting non-violent individuals because the government believes that they represent a potential for violence is precisely what preemptive 4

15 prosecution is all about. In preemptive prosecution, the targets are prosecuted with fake, manufactured, or pretext charges to preempt them from developing their potential for violence, as the Church Committee report puts it. METHODOLOGY In 2010, the Department of Justice (DOJ) published a list of individuals that it claimed represented all of the terrorism and terrorismrelated convictions in the U.S. from September 11, 2001 to March 18, 2010 ( ocs/terrorism-convictions-statistics.pdf). Via the Project SALAM database, this study uses the DOJ list as a basis to categorize and analyze cases of preemptive prosecution. The DOJ list is unfortunately incomplete. It is both over-inclusive and under-inclusive: it omits terrorism cases decided after March 18, 2010, it omits some terrorism cases that were decided prior to that date, and it includes some cases that do not appear to be terrorism cases at all (see below under No Preemptive Prosecution ). This probably reflects a lack of clear standards for inclusion on the DOJ list. Project SALAM has built and maintained a much more comprehensive database that contains significantly more cases than the DOJ list, including more preemptive prosecution cases and additional cases that reflect a real security threat. However, the statistical analysis of this study considers, in Appendix A, only those cases that appear on the DOJ list. (Project SALAM s database includes more complete information on each case than does the DOJ list, and thus Appendix A includes this information, but only with regard to those cases that appear on the DOJ list.) This study will refer later on to other cases that are not on the DOJ 5

16 list, but which are found in the Project SALAM database, as examples of issues the study has identified, but these additional cases not on the DOJ list are not included in the statistical analysis. For purposes of terminology, this study refers interchangeably to the convicted individuals on the DOJ list as both individuals and cases, the latter term encompassing all the charges and tactics used to bring the prosecution against that individual, although a single case often had more than one defendant, especially those cases designated by their popular names, such as the Newburgh Four or the Virginia Paintball Network. The original DOJ list did not group such individuals by case, but the Project SALAM database has done this. Appendix A lists all of the convicted individuals included on the DOJ list, and this study places each of those individuals cases in one of three categories: 1) preemptive prosecution, 2) elements of preemptive prosecution (a prosecution based on an initial decision by the defendants to engage in non-terrorism-related and often minor crime, but which the government then inflated into a terrorist charge), or 3) a terrorism-related charge that does not have the characteristics of preemptive prosecution. Using these categories, it is possible to quantify what percentage of the government s terrorism and terrorism-related convictions represents preemptive prosecution cases, what percentage represents elements of preemptive prosecution cases, and what percentage represents cases that do not qualify as preemptive prosecution and thus were actual threats to national security. Based on the above-mentioned classifications, the study made the following assumptions in designating cases. 6

17 Preemptive Prosecution: General Considerations 1. Preemptive prosecutions are generally characterized by the absence of a crime involving injury to people, damage to property, or disruption of public order. Rather, there is suspicion of what the defendant might do in the future based on the defendant s religion or ideology. 2. Preemptive prosecutions are characterized most clearly by the disparity between how individuals of a certain religion or ideology are treated when compared with the general public. Actions that would be ignored or treated lightly when performed by a member of the general public are heavily prosecuted and sentenced when performed by a member of the targeted group Preemptive prosecutions are also clearly characterized by the unreasonable severity with which cases are prosecuted and sentenced. For example, because of the terrorism enhancement that effectively quadruples normal sentences, prosecutors can force defendants to accept plea bargains as the only alternative to draconian prison terms, or can force defendants to cooperate or become informants. Preemptive Prosecution: Specific Considerations 1. Cases involving Muslim charities or charitable donations are considered preemptive prosecutions unless there is evidence that the defendants intended the money to support violence. 2. Prosecutions based on what would normally be protected speech under the First Amendment are considered preemptive prosecutions even if the defendants advocated non-specific violence. Free speech includes the right to use violent and hate speech, and it is not charged as a crime when right-wing terrorists or domestic hate groups engage in it. Charging only 7

18 Muslims or other targeted groups is discriminatory and preemptive. 5 See, for example, the cases of Tarek Mehanna and Javed Iqbal in Appendix B. 3. All prosecutions based on free association 6 are considered preemptive prosecutions unless there was evidence that the defendant intended to engage in violence. Simply being a member of a group, or being associated with certain individuals, should not be a crime unless there is evidence of specific intent to become involved in a given criminal action or conspiracy. A number of material support and conspiracy cases included individuals who were friends of others who were charged, and this association was the main evidence against them, with little or no additional evidence. These include the cases of Ziyad Yaghi, Ehsanul Shifa Sadequee, the Fort Dix Five, and several others. As long as friends do not discuss specific plans for criminal activity, their general association should not be criminalized. 4. All prosecutions of defendants who expressed a desire to go to a training camp, or who unsuccessfully tried to find one, or who attended one and failed to act on the training, are considered preemptive prosecutions unless the circumstances indicated that the defendant actually intended to engage in violence against civilians or the United States. Many defendants were drawn to attend training camps out of a desire to defend Muslim communities in Bosnia, Kashmir, Chechnya, Sudan, or other countries where there was/is conflict. This study takes the position that it is inappropriate and preemptive to criminalize these attempts to defend Muslim communities in foreign lands from attack. 7 However, cases in which the defendants actually intended to commit acts of violence against American soldiers or against civilians are not included as preemptive prosecutions. 8

19 5. Charges of making false statements to the FBI or immigration or other federal law enforcement authorities are considered preemptive prosecutions if the false statements were unconnected to any other violations and appeared to be simply devices to hold the defendant because of suspicions about his or her ideology Immigration charges are considered preemptive prosecutions when there was no evidence of any terrorist activity or of any crime beyond a technical violation, such as an omission on a form. Many of these cases, often prosecuted soon after 9/11, were based on initial suspicions that were proven false, or for which there was no evidence. See the cases of Ahmed Abdulla Elashmouny and Ashar Iqbal Butt in Appendix B. 7. Hawali (unlicensed money transfer) charges are considered preemptive prosecutions when there was no evidence that any of the money was being sent for criminal or terrorist activity. Hawali is an informal system of money transfer used mainly in the Middle East and Africa. It is often the only way that families in America can send money to impoverished families in the Middle East, but such unlicensed money transfers violate U.S. laws. The U.S. government generally does not prosecute (or shows great leniency to) those who send money to their relatives abroad except for those about whom it is suspicious. Thus hawali prosecutions often are pretext charges based on suspicions about the defendant s ideology. 8. Sting operations are considered preemptive prosecutions when there was no evidence that the targets were already engaged in specific terrorist plots before being entrapped by the government. Entrapment is normally a defense in response to such a prosecution, but the government has successfully argued that in terrorism cases, the targeted defendants 9

20 were ideologically predisposed to commit the crime, and so the entrapment defense required that the defendant must have affirmatively rejected the FBI s manufactured plot. 9 In this way, the government has essentially eliminated the entrapment defense for terrorism cases. 10 This is another example of how preemptive prosecutions have been prosecuted differently from normal prosecutions. 11 Elements of Preemptive Prosecution This category involves cases in which the defendants engaged in non-terrorist crimes, often involving some form of fraud or theft (i.e., stolen cereal or cigarette smuggling), and the government was suspicious that the defendants might be related to terrorism in some way. This often happened when the government initially thought that the defendants might have been financing terrorism with illegal activities, but did not have evidence of that. The government then either added terrorism-related charges, used the sentencing enhancement for terrorism, or simply sentenced these defendants more harshly than normal for the crime in question. All of these individuals were included on the DOJ list by the government as having terrorism or terrorism-related convictions, even though many cases contained no terrorism-related charges. No Preemptive Prosecution Twenty-three individuals on the DOJ list (5.8%) were not considered by this study to have been preemptively prosecuted, nor did their cases contain elements of preemptive prosecution. However, this category includes some individuals who appear on the DOJ list who seem to have posed genuine threats to the nation s security. Because such real threats are of interest not only to the government but to all citizens, the study describes these cases more fully here by further breaking down the category into four 10

21 groups, with brief details on each case: 1) Individuals who were guilty but were not terrorists; 2) Individuals who attacked other countries; 3) Individuals who were security threats inside the U.S.; and 4) Individuals not on the DOJ list who were security threats. 1. Individuals Who Were Guilty but Were Not Terrorists Of the twenty-three individuals who are on the DOJ list but were not preemptively prosecuted, nine of them had nothing to do with terrorism at all. These include: Amr I. Elgindy, Jeffrey Royer, Derrick Cleveland, Lynn Wingate, Robert Hansen, and Troy Melton Peters. All engaged in a clever stock fraud that had nothing to do with terrorism. First Royer, an FBI agent, stole confidential FBI information indicating that certain firms were under FBI or SEC investigation. Elgindy, the broker, then sold these stocks short so as to make a profit if the stock dropped in price. Then all of the defendants disseminated the stolen (and truthful) information about the FBI or SEC investigations to drive down the stock price so they could make a large profit. Hasan Ali Ayesh. He was convicted of structuring currency transactions to avoid U.S. laws, wire fraud (creating a fake tax return that inflated his assets so he could obtain a loan), and naturalization fraud (signing a written statement that he was not violating any U.S. laws). Nothing in his plea or his actions indicated involvement in terrorism. Zameer Nooralla Mohamed. In order to retaliate against his exgirlfriend, Mohamed falsely claimed that she and her friends were planning to bomb a mall. There were no allegations of terrorism. 11

22 Vildirim Beyozit Tumer. He was a Turkish ship captain in Delaware who joked to the Coast Guard that there was a bomb aboard his vessel. 2. Individuals Who Attacked Other Countries Ten individuals on the DOJ list attacked or attempted to attack other countries: Vinh Tan Nguyen. He tried to bomb the Communist Vietnamese embassy in the Philippines and was sentenced to only fourteen months. Nancy Conde Rubio. She was a member of FARC, a group in Colombia that the U.S. termed a designated terrorist organization (DTO). David Coleman Headley. A former DEA informant, he organized various attacks, including the 2008 Mumbai attacks in India. Christopher Paul. He trained Al-Qaeda members in Germany to attack tourists overseas. Mohammed Mansour Jabarah. He planned embassy attacks in Singapore. Artur Tchibassa. He was convicted of involvement in the kidnapping of an American employee of Chevron by a paramilitary group in Angola. Bryant Neal Vinas. He fought for Al-Qaeda in Afghanistan. Mohammed Junaid Babar. He gave support to Al-Qaeda fighters in Afghanistan. Mohamed Suleiman Al-Nalfi. He was arrested after the 1998 embassy bombings in Kenya and Tanzania but pleaded guilty to only 12

23 one conspiracy charge of planning to attack American defense utilities, saying he had formed a Sudanese branch of Al-Qaeda. Yasith Chhun. He led a failed coup in Cambodia in Individuals Who Were Security Threats Inside the U.S. Four individuals on the DOJ list were real security threats inside the U.S.: Zacarias Moussaoui. He admitted to being part of an Al-Qaeda plot in the U.S. (not 9/11, but he was suspected of being the twentieth hijacker on 9/11). Richard Reid (the Shoe Bomber ). He tried to blow up a plane headed to the U.S. by exploding a bomb hidden in his shoe. Najibullah Zazi (and co-defendants) (the Peroxide Bomber ). He tried to make a bomb out of hydrogen peroxide to detonate in the New York City subway system. Nuradin Mahamoud Abdi. He discussed blowing up a mall in Ohio but never did anything to advance the plot. 4. Individuals Not on the DOJ List Who Were Security Threats Seven individuals were not on the DOJ list but were real security threats: Faisal Shahzad (the Times Square Bomber ). He unsuccessfully tried to set off a car bomb in Times Square in New York. Farouk Abdulmutallab (the Underwear Bomber ). He unsuccessfully tried to blow up a domestic flight with a bomb hidden in his underwear. Dzhokhar and Tamerlan Tsarnaev (brothers, perpetrators of the Boston Marathon bombing). Charged with the murder of a transportation police officer and with killing three and injuring

24 with bombs at the Boston Marathon, Dzhokhar has not yet gone to trial. (Tamerlan was killed in a shootout with police). Major Nidal Hasan (the Fort Hood Shooter ). An Army officer, he shot and killed thirteen soldiers and injured many others at Fort Hood in Texas. Khalid Aldawsari. A Saudi student arrested in Texas in February 2011 and charged with trying to make a bomb (he had ordered chemicals and had allegedly ed himself instructions), he pleaded guilty and was sentenced to life in Naser Jason Abdo. He plotted to attack soldiers at Fort Hood. Combining subcategories 3 and 4 gives a list of the most significant security threats to the U.S. since 9/11. Put another way, it can be said that, since 9/11, there have been eleven potentially significant threats to the U.S., but only three were successful (the Tsarnaev brothers and Major Nidal Hasan), accounting for seventeen deaths and several hundred injuries. When considered with the ten potential threats abroad, it is fair to say that there is indeed a continual background threat of violence to the U.S. that requires monitoring and good police work to prevent. However, this threat is a much lower magnitude of danger to the American public than other dangers, such as gun violence and driving while intoxicated. It is said that a person has a greater chance of dying of a dog bite or a lightning strike than from a terrorist attack. 12 At the same time, it is fair to say that the amount of money and resources devoted to preventing terrorism threats is far greater than the resources devoted to other more common dangers. The budgets for the NSA and other intelligence agencies are classified, so they would be hard to even estimate. But considering the relatively low level of danger to the 14

25 public from a terrorist attack, the amount of money being expended to prevent an attack is difficult to justify. With the possible exception of the Zazi case, none of the eleven individuals (ten cases) were exposed by NSA mass surveillance. Indeed, in these cases the FBI and other agencies missed some important leads that should have alerted them to the danger. For example, Farouk Abdulmutallab s father called the FBI to warn them that his son was dangerous, but the warning was ignored; the Russian police warned the FBI that the Tsarnaev brothers were dangerous, but the warning was ignored; the Army ignored many signals that Major Nidal Hasan was unstable and dangerous. It has been suggested that one reason the FBI has been unsuccessful at stopping real threats is because it has become distracted by pursuing fake or pretext cases against individuals who are not dangerous. 13 STATISTICAL ANALYSIS Appendix A shows the terrorism convictions listed by the Department of Justice. The total number of individuals on that list is 399. According to this study s classification, the number of preemptive prosecution cases is 289 out of 399, or 72.4%. The number of elements of preemptive prosecution cases is 87 out of 399, or 21.8%. Combining preemptive prosecution cases and elements of preemptive prosecution cases, the total number of such cases on the DOJ list is 376, or 94.2%. The following is a breakdown of those same cases from the DOJ list, this time categorized by tactical pattern used, and then subcategorized by designation as either preemptive prosecution or elements of preemptive prosecution (herein called elements ). 15

26 Material support: Preemptive prosecution cases containing material support charges: 99 of 399, or 24.8% Elements cases containing material support charges: 33 of 399, or 8.3% Combination of both types of cases containing material support charges: 132 of 399, or 33.1% Stings: (note that many sting cases also contained material support and/or conspiracy charges) Preemptive prosecution cases that were stings: 71 of 399, or 17.8% Elements cases that were stings: 13 of 399, or 3.3% Combination of both types of cases that were stings: 84 of 399, or 21.1% Conspiracy: Preemptive prosecution cases with conspiracy charges: 117 of 399, or 29.3% Elements cases with conspiracy charges: 42 of 399, or 10.5% Combination of both types of cases with conspiracy charges: 159 of 399, or 39.8% False statement or perjury charges: Preemptive prosecution cases with false statement/perjury charges: 65 of 399, or 16.3% Elements cases with false statement/perjury charges: 9 of 399, or 2.3% Combination of both types of cases with false statement/perjury charges: 74 of 399, or 18.6% 16

27 Immigration-related charges: Preemptive prosecution cases with immigration-related charges: 26 of 399, or 6.5% Elements cases with immigration-related charges: 0 of 399, or 0% Combination of both types of cases with immigration-related charges: 26 of 399, or 6.5% DISCUSSION 1. Background After 9/11, the FBI was charged with preventing future terrorist attacks, and it focused in part on ideology as a way to predict who might engage in future terrorist attacks. If a defendant said or did things to indicate he or she held a particular religious or political view, the FBI could claim that the defendant s innocent actions or statements involving charitable giving or management, peace-making, free speech, free association, or other constitutionally protected activity were material support for terrorism. If pretext material support charges were not available, the FBI engaged paid agents provocateur to entrap targets into saying or doing something illegal, or prosecuted targets for non-terrorismrelated crimes that otherwise would not have been prosecuted. The trials were typically characterized by inclusion of secret evidence, excessive security to intimidate the jury, questionable governmental experts, mistranslations and mischaracterizations of the defendant s words, and other unfair tactics that forced defendants to defend themselves on highly un-level playing fields. Many such defendants were sentenced to extraordinarily long prison sentences, often served at Communication 17

28 Management Units or in solitary confinement (see under Recommendations, #7). Many people across the country spontaneously perceived these prosecutions and sentences to be unjust and formed grassroots support committees to protest the FBI s actions. In August 2008, members of several such groups came together at a conference in Albany, New York and founded Project SALAM (Support And Legal Advocacy for Muslims). Project SALAM identified preemptive prosecution as the underlying similarity between these cases and began to build a database of cases that showed identifiable similarities. Other groups arose throughout the United States to protest injustices that reflected the same basic preemptive prosecution profile. In 2010, twenty different groups came together to form the National Coalition to Protect Civil Freedoms (NCPCF), an organization that, among other endeavors, studies and documents preemptive prosecution, profiling, and prisoner abuse. Part of its activity included augmenting the Project SALAM database of cases that involved preemptive prosecution. Thus an understanding of preemptive prosecution arose from the experiences of groups all over the country struggling to explain cases of injustice in their own communities that seemed irrational in a conventional sense. 14 It was only after the preemptive pattern became clear that people realized the charges in these cases were only pretexts. It was their perception that the defendants were being incarcerated because the government, often for secret reasons based on classified surveillance, believed that the defendants posed some kind of security risk; or because government agents and prosecutors wanted terrorist convictions to advance 18

29 their careers; or because agencies needed to justify the enormous budgets that were allocated for security and crime prevention. 2. Tactical Patterns of Preemptive Prosecutions Preemptive prosecutions can be identified by the tactics of the pretext charges that the government uses. These include: Material support for terrorism charges This study considers any charge brought against a target for material support of terrorism to be a preemptive prosecution unless the target intended to actually support terrorism, i.e., politically motivated violence or intimidation aimed at civilians or at the U.S. or another government. This is especially true if the charge relates to: Constitutionally protected free speech. Under Holder v. Humanitarian Law Project, 15 the Supreme Court held that material support for terrorism cannot be used to prosecute free speech unless the speech is coordinated with a designated terrorist organization (DTO). However, in practice the government has ignored this limitation and has repeatedly brought material support charges against targets simply for what they have said, even when the government has not suggested that the speech was coordinated with any DTO. The term coordination has never been defined legally, leaving journalists, NGOs, and other groups vulnerable to what speech might trigger a material support charge. 16 The government has even suggested that a lawyer would be guilty of material support for terrorism for filing a brief on behalf of a DTO asking that the organization be removed from the terrorist list

30 Even worse, in some cases the government has brought charges without even suggesting that a DTO was involved; instead it has claimed that the speech was simply supportive of terrorism generally. For example, the government has claimed that simply putting translated documents on the Internet might allow Al-Qaeda to download the documents, without any proof that this actually happened. 18 (And even if the documents were downloaded, there would be no proof of any coordination. ) When Muslims work at a TV station, or make statements on Facebook that oppose U.S. wars in Afghanistan or Iraq or support Palestinian self-determination, they are construed by the government as support for terrorism, while the same statements by non-muslims are looked at more innocently. 19 Although such charges go well beyond the already-problematic holding in Humanitarian Law Project and do not give the public fair notice as to what is illegal, they have resulted in convictions that have been upheld on appeal. 20 Free association. The government has repeatedly brought charges against individuals simply because they were friends of a target, or because they were innocently involved in an association with individuals whom the government wanted to target because of their ideology. The government often calls these associations and friendships conspiracies, but a conspiracy must be based on an agreement to engage in criminal conduct. The fact that one or more of the members of a group of friends happens to be engaged in criminal activity 20

31 should not make all of his friends guilty by association. But in a preemptive prosecution, the government uses such guilt by association as a basis to bring conspiracy and material support charges. Because the line between friendship and conspiracy can be easily blurred by irrelevant but prejudicial allegations, especially when the individuals are Muslims, the government has been able to scare juries into conspiracy convictions, notwithstanding little evidence of any intent to engage in criminal conduct. 21 Charitable giving and management. The government has repeatedly brought charges for engaging in charitable activity even where there is clear proof that the target did not know he or she was benefiting a DTO and had no intention to do so. Absent proof that the target intended to promote violence against civilians, all charity cases that are prosecuted should be considered preemptive prosecutions. 22 Social hospitality. Providing someone with a meal, loaning him a cell phone, or allowing him to store a bag of clothes should not be considered terrorism. A person providing social hospitality is not aware that he or she may be engaging in criminal conduct, nor is he trying to promote violence. Unless the social hospitality is directly linked with a plot to attack civilians, prosecutions of social hospitality should be considered preemptive prosecutions. 23 Although in these cases the government has to prove that the person giving the 21

32 social hospitality intended to help a DTO by his actions, the government has typically discharged this obligation by claiming that the defendant had a radical ideology and so any social hospitality must have been intended to help a DTO. The implication is unfair, but juries are so willing to convict Muslim defendants that they often ignore the lack of evidence of any intent to support a DTO. The potential sentences are so draconian, and juries are so easily manipulated by the government in terrorism cases, that defendants have on occasion pleaded guilty in flimsy cases rather than face the prospect of many decades in prison. 24 Training camps. Many young people desire to serve as protectors of communities under attack. The U.S. has a long history of permitting young Americans to fight against dictators and tyrants, such as in the Spanish Civil War, where many Americans fought against Franco. There is also a long tradition in America of permitting groups like the Ku Klux Klan to hold training camps in rural areas to indoctrinate individuals and give them firearms training. Such activities are protected by the First Amendment right to free speech and association and by the Second Amendment right to bear arms. The law is clear that as long as these groups, and the individuals in them, do not discuss specific criminal plans, simply meeting to talk politics generally and to undergo general military or other training is not illegal. The line is 22

33 crossed only when members engage in specific planning to engage in criminal activity. By contrast, since 9/11 the FBI has consistently brought material support charges against Muslims simply for attending training camps involving a DTO, or for attempting to attend such training camps, or for even discussing attending a training camp at home or abroad, on the theory that a publicly expressed desire to attend a training camp constitutes material support for terrorism. It is easy to see some of these situations as preemptive prosecutions. Groups of young men go into the woods to practice physical fitness and discuss their religious and political beliefs. The FBI has infiltrated the group and knows that no plans are being developed for any specific criminal activity. Thus prosecuting such a group for material support for terrorism is clearly preemptive prosecution prosecuting the group before its potential for violence has been developed and before a crime has been committed or contemplated. Even worse, inserting an agent provocateur into such a group to try to steer the group into committing prosecutable crimes is clearly preemptive prosecution. Most of the prosecutions of domestic groups fit this pattern, and so we define them to be preemptive prosecutions. 25 In the same way, it should not be a crime for someone to attend a foreign training camp with the goal of protecting communities abroad from attack by terrorist organizations or tyrannical governments. For example, a number of people attended training camps abroad and then defended Muslim 23

34 communities in places like Bosnia and Afghanistan at a time when they were fighting on the same side as the American government and were thus in accordance with American policy. 26 Prosecuting such people after the fact for material support for terrorism is clearly unfair and preemptive. Prosecuting people for wanting to go abroad to get training is also clearly preemptive when the individuals do not actually obtain training, or do not act on the training once they understand what it is. Some people receive training and decide they do not want to become involved. 27 Some groups and individuals try to join training camps and are turned away. 28 Some groups or individuals merely discuss the idea but never actually try to join a training camp. 29 In each of these scenarios, individuals or groups are exploring their options through free speech and free association. Until they actually engage in violence against civilians or the U.S., or have made a specific plan to do so, they have not committed any crime and should not be prosecuted simply for their speech and associations. The government argues that merely expressing interest in or visiting a training camp constitutes material support for terrorism, but without a specific plan to commit a crime, any prosecution for discussing or visiting a training camp would be preemptive. Stings (entrapment) The government uses agents provocateur to target individuals who express dissident ideologies and then provides those provocateurs 24

35 with fake (harmless) missiles, bombs, guns, money, encouragement, friendship, and the technical and strategic planning necessary to see if the targeted individual can be manipulated into planning violent or criminal action. Ordinarily the law prohibits the government from entrapping innocent citizens into crime, but the law provides an exception when the target is predisposed. Although the term predisposed usually describes someone who was already involved in similar criminal activity, or where evidence shows he or she was inclined to do so without any government inducement, in preemptive prosecution cases the government has successfully claimed that the term can mean that the target readily responded to the inducement and did not subsequently withdraw from the plot. In the Newburgh Four case, for example, the government provocateur offered one defendant $250,000 when he wanted out of the government plot, and he was convicted because he did not again try to withdraw after being offered the money. Beyond general anti-semitic statements he made, there was absolutely no evidence of predisposition. 30 So far, this ready response theory has been upheld by the courts, and so in all practical respects the entrapment defense no longer exists. Moreover, it appears that based on Islamophobia and ignorance about Islam, Muslims are often considered to be predisposed to terrorism simply due to their religion, especially if they are religiously conservative. 31 Stings are targeted at a particular person and play upon the particular weaknesses of that person. For example, the target may be very poor and is offered large sums of money to engage in criminal conduct; or the government may use the target s ideology to pressure 25

36 and shame him or her into doing something illegal; or it may bring other pressure to bear to force the target to engage in criminal conduct. The target is typically presented with a test of whether he or she can withstand the inducements of the government to engage in illegal acts, whereby the government applies as much pressure as possible and uses the vast resources at its disposal, based on the premise that the targets may be recruited by highly persuasive, manipulative terrorists. (In reality, true terrorists would never recruit most of these people because they are too vulnerable and therefore unreliable.) One of the best signs of a preemptive prosecution by sting is that the targets were either uninterested in or unable to develop any plot without the government s involvement. In many such cases, the government provided not only the resources but also the plans themselves. 32 In the Aref-Hossain case, the FBI included a (dummy) missile in the sting so that as a weapon of mass destruction, it would trigger enhancements in the sentencing. But the FBI failed to show the missile to Aref, because they were afraid that if Aref saw the missile it might spook him and he might refuse to continue witnessing loans, thus ruining their frame-up. 33 In the Newburgh Four sting, the targets in New York were instructed to buy guns in Connecticut so that they would cross a state border, which would trigger federal jurisdiction Stings often set up the targets for the harshest sentences by inducing them to become involved in actual bomb plots rather than just provide material support to some group. This accomplishes two 26

37 things: it ramps up fear on the part of the public, 34 and it often results in life sentences for these vulnerable young men. Conspiracy charges In preemptive prosecutions, conspiracy charges are often brought along with other charges because a conspiracy allows more use of hearsay evidence and has other evidentiary advantages. All associates are considered equally culpable, even if they do not know of the existence of a plan; thus such charges are also a good way for targets to be found guilty by association: they are part of the conspiracy whether or not they know anything about a particular crime. As described above, many conspiracy charges are simply violations of a defendant s right of free association. Merely because a defendant is a friend of someone who has violated material support laws is not a basis to charge the defendant with conspiracy, but such governmental overreach is routine in preemptive prosecution. Conspiracy charges in preemptive prosecution cases tend to focus on ideology as a proxy for the agreement to commit a crime, which is required by conspiracy law. But because two individuals share a Salafist or a Communist philosophy does not mean that they have agreed to do something illegal. Once there is a conspiracy, however, then foreseeable acts of co-conspirators can be charged against any member of that conspiracy. And once it is accepted that there is a conspiracy, it doesn t take much evidence to show that a particular person is a member of it. For example, in the Ziyad Yaghi/Raleigh 7 case, the government claimed that some young men, including Yaghi and Omar Hasan, knew an older man, Daniel Boyd, and his sons, who advocated protecting Muslim communities 27

38 in Bosnia that were under attack. Because all the people knew each other, the government claimed that they must have shared a common ideology. When Boyd helped buy tickets for Ziyad and Omar to visit the Middle East to see relatives and arrange for a wedding, the government claimed that they were actually looking for targets to attack, even though there was no evidence of this. Their association with Boyd implied a common ideology, and the common ideology allowed the jury to infer that innocent actions like visiting relatives in the Middle East were actually cover for illegal intentions in furtherance of the common ideology. Similarly, in the Fort Dix Five case, the three Duka brothers were convicted of planning to attack Fort Dix even though the government s witness conceded that the three brothers knew nothing about a plan to attack Fort Dix. Their common ideology of defense for Muslim communities under attack supposedly permitted the inference of a conspiracy, even though the three brothers knew nothing about any actual criminal plan regarding Fort Dix. 35 Use of pressure to obtain information or cooperation Often the goal of preemptive prosecution is to pressure a target into cooperating or giving information. The target may tell the FBI that he or she is not willing to wear a wire to record information or to otherwise cooperate as an informant. 36 To increase the pressure, the government may then indict the target by using material support charges. In addition, the government often uses a target s immigration status, or the status of a loved one, as a way of getting leverage over the target; or it may use preemptive deportation as a way of forcing the target to cooperate. 28